A fair and balanced jury trial is the ultimate human expression of the law. It is a kaleidoscope of working parts of people, documents, and things. Witnesses paint pictures with answers to questions drafted by skillful attorneys. Attorneys design questions to impact the jury on an emotional level. Each question matters. Each answer counts. A lawyer’s countenance is important. The manner of questioning is structured. Both sides must meaningfully participate, and, theoretically, both sides have access to similar resources. A jury trial has a rhythm and flow, and the trial judge sits at the top of the room, keeping the beat. It is a common beat known to any experienced litigator. Nonetheless, common cases sometimes result in uncommon verdicts because jurors are humans, and without guidance in their deliberations, they may let their emotion determine their decision.
The most controversial trend in civil litigation is the continuing increase of the number of verdicts with extraordinarily high non-economic damages anchored by a disproportionately small economic loss. A large award is not in and of itself an issue. When plaintiff is injured, a seven-figure verdict may be just and proportional to the actual impact on plaintiff’s life. The runaway jury verdicts, or “nuclear verdicts,” are cases for which the award is significantly disproportional to the established economic losses and life disruption. Plaintiff’s attorney is able to connect to the jury on an emotional level that pushes the focus away from the actual evidence. There are numerous books published for plaintiff’s lawyers to learn techniques designed to trigger an emotional response from a juror.
Attorney Robert F. Tyson, Jr., a seasoned trial lawyer and Managing Partner of Tyson & Mendes, published an innovative book on the subject of nuclear verdicts: Nuclear Verdicts: Defending Justice for All.[i] The book is entertaining, informative, and provides substantive support for the conclusion that anger is the emotion driving a jury more than sympathy. Anger causes the jury to pivot from the case-specific evidence and focus on punishing a “bad” defendant.
One Nevada example demonstrates the power of an angry jury. In a 2016 municipal case, a passenger died after choking on a sandwich while riding the bus. During closing argument, plaintiff’s counsel argued the municipality denied responsibility and blamed the decedent for eating on the bus. In addition, plaintiff argued the municipality denied responsibility for caring for the decedent because the parents of a disabled adult child should have provided additional support. The plaintiff’s attorney argued the municipality did not comply with regulations for training drivers, and the driver knew or should have known of the incident occurring. For the five minutes of suffering before death, they identified opportunities to intervene and asked the jury for “money justice.”[ii] At closing, the attorney argued:
We can go on Google and we see that this sculpture, this guy, Henri Matisse, sold for $48 million.
A sculpture. We see that this Van Gogh sold last year for $66 million. This is a canvas. It’s a canvas. It’s a canvas about this big. It’s a canvas that has paint on it and it’s $66 million. This isn’t even the most valuable Van Gogh…….it’s not fair to equate life of a human with a painting or a car or sculpture…But if they smashed (a Ferrari) and they crushed that car, would the driver be entitled for full justice, for the full value of that car?[iii]
While it seems somewhat odd to compare a deceased child with a car, it worked. The defense contested liability. During closing, the defense attorney stated, “…his parents initially felt that (the decedent’s) death was just God’s plan.” The jury then awarded $7.5 million dollars to each of the parents for a total of $15 million dollars.
One part of the solution to these nuclear verdict awards is to take time to understand plaintiffs. Take time to understand defendants. Demonstrate the natural empathy one has for an injured person. Acknowledge the pain plaintiff has endured.
For the civil defense bar, the shift has been a grudging acknowledgement the average juror is more than just a reasonable and rational trier of fact. The juror is an individually complex person who receives information through a prism of prior experiences. Civil defense attorneys must factor in an analysis of the emotional components of case. When a defense attorney does not take the time to assess how a jury may “feel” about defendant, they may miss the signs and symptoms of a case that could end with a nuclear verdict.
[i] Robert F. Tyson, Jr., Nuclear Verdicts: Defending Justice for All, (1st Ed. 2020).
[ii] Chernikoff v First Transit, A-13-682726-C, Clark County, Nevada District Court, 2/29/2016.
[iii] Chernikoff, supra.